Adult Guardian & Conservator

When is a guardian or conservator necessary?

A guardian and conservator may be necessary when a loved one is no longer able to handle their own affairs and have not signed legal documents to cover decisions about financial and personal matters. Many adults have long periods towards the end of their life when they are not able to make decisions for themselves. Some younger adults find themselves in the same position due to a physical or mental disability.

If you are considering a guardian or conservator for a loved one, there are several things you should know. The terms guardian and conservator are often used interchangeably by lay people. However, they have specific legal meanings. A guardian refers to the one who can make decisions about the person's everyday care. For example, where they should live and what doctor they should see. A conservator is the person who makes the financial decisions. One person can do both jobs or the duties can be split. The person needing a guardian or conservator is often called a ward or conservatee. For ease of understanding, ward will be used.

What is the procedure for establishing a guardianship or conservatorship?

Documents will need to be filed with the local county district court in order to obtain the judge's approval. A petition requests the guardianship and conservatorship be established and gives notice of a date for the court hearing. The notice will list a potential person or persons to be guardian and conservator and must be sent to various relatives and interested parties. In Kansas, a doctor must sign a document stating the proposed ward meets the legal definition of incompetency. In addition, an attorney must be appointed to represent the proposed ward, to protect their interests. The proposed ward may want to contest whether or not they are incompetent. The attorney for the ward must be approved by the court and would be paid by the one who is trying to obtain the guardianship or conservatorship. At a later date, the court may approve funds from the ward's estate to be used to reimburse this expense. The appointed attorney will visit the proposed ward and report to the court. At the hearing, other people may request to be appointed the guardian or conservator. The judge will make the determination as to who should be appointed. If no friend or relative is willing or suitable to be appointed, the judge can appoint a professional, who would be paid from the ward's estate, to do the work. In Kansas, there is a guardianship program where trained volunteers manage the affairs of someone who is without the relatives or resources necessary to serve as the guardian or conservator. In order to qualify for this program, the Department of Children and Families must be consulted for assistance.

Attorney Linda K. Howerton can help you with this process. Call her for a free thirty minute consultation.

Who should be the guardian or conservator?

A proposed guardian or conservator is generally an adult child or sibling who lives close to the person in question. A trusted friend or other relative could also qualify. A proposed conservator should be someone familiar with handling finances and has the time to manage the ward's affairs. The more financial knowledge one has, the better.

What if there is disagreement as to who should be the guardian or conservator?

If there is a disagreement as to who is the best person for the job, it is highly recommended to discuss the issues with family members before the petition is filed. If there is an agreement, the court most likely will appoint the person agreed upon. However, if there is no agreement, this court will make the decision. The latter makes the process more expensive and stressful.

Linda K. Howerton offers a free thirty-minute consultation.

Call her for answers to your questions.

How does one avoid having to establish a guardian or conservator through the court?

While your loved one is still competent to handle their own affairs, they may sign a durable power of attorney naming someone they trust to handle all of their financial affairs. In addition, the loved one can sign a health care power of attorney naming someone to handle all their medical decisions. This can be effective upon signing or upon the incapacity of the loved one.

Attorney Linda K. Howerton can provide you with both necessary forms for a nominal fee. Call her for a consultation.

Once someone is no longer able to make decisions for themselves, they cannot legally sign these documents. Even if they have signed the proper documents, a guardian may be necessary to make medical decisions that are not covered by the advanced directives.

What are the duties of the guardian and conservator?

Once the guardian and conservator are appointed, there is much work to do. The guardian and conservator will have to deal with doctors, Medicare, insurance and perhaps a long-term care facility. Most likely, they will need to apply for benefits, pensions or medical coverage for which the ward may be eligible.

The court continues to play a role throughout the process. The guardian and conservator must file a report with the court at least once yearly. Therefore, careful records must be kept in order to report the court. There are several decisions they cannot make without the approval of the court. These include selling real estate, transferring business interests, consenting to removal of life saving medical care and others. Before these decisions can be made, the court must be petitioned and consent to the proposed action. There are legal parameters which the court must adhere to in determining whether to consent to the proposed action.

Does a guardian or conservator get paid?

The guardian and conservator may be reimbursed by the ward's estate for the expenses incurred in managing the ward's affairs. However, compensation for their time depends on the extent of the estate, time-consuming nature of the duties and the consent of the court. A professional guardian or conservator would have to be paid from the ward's estate.

How does the guardianship or conservatorship end?

Usually the guardianship or conservatorship is terminated upon the death of the ward. However, if the ward regains competency, he or she can petition the court to terminate the guardianship or conservatorship.

What if the ward's affairs are mishandled?

The guardian or conservator are not financially responsible for poor decisions. However, if they are stealing, committing fraud or reckless in handling matters, the judge should be notified by motion. In addition, the court may approve a change in who holds the position if the one appointed becomes unwilling or unable to carry out the duties.

DISCLAIMER:

This site does NOT contain legal advice. There is NO attorney/client relationship created by any information given on this site! Linda K. Howerton is only licensed to practice in Kansas and Missouri. For matters in other states, contact an attorney in that jurisdiction.